SPOUSAL SUPPORT
Divorce or separation alone does not automatically entitle one spouse to spousal support. The role played by each spouse over the course of the marriage, economic interdependence, differences in income, and the existence of children are all relevant factors to consider. Spousal support can be claimed by married or common law spouses.
There are two steps to consider when dealing with spousal support: i) Entitlement, ii) Amount and Duration. |
I. Entitlement
Spousal support has a very different legal foundation from child support. Parents have a fiduciary duty to support their children, who are presumed to be in a state of dependence. Entitlement to child support is automatic after a marriage breakdown. By contrast, there is no presumptive right to spousal support. The factors that give rise to spousal support are contained in s. 33 of the Family Law Act and s. 15.2 of the Divorce Act. The principles that give rise to spousal support are as follows:
Entitlement issues also play a role in determining whether a spouse will be entitled to a post-separation increase in the payor's income. Again, if the support is compensatory, a recipient spouse will have more of a claim to post-separation increases in the payor's income (see G. v. G. [2013] OJ No. 5102). The connection between recipient's contributions during the marriage and the payor's success at obtaining an increased salary is key (see J. v. J. [2010] BCSC 153). It is usually sufficient for the recipient to show that he or she was a stay-at-home parent to establish this contribution.
- Compensation: marriage may confer economic advantages and disadvantages on each spouse, depending upon the role assumed during the relationship. One spouse may relocate, stay home with the kids, and/or maintain the household, allowing the other spouse to work long hours and advance a lucrative career. After separation, fairness dictates that the spouse that made sacrifices for the benefit of the family will be compensated through spousal support.
- Need and Means: since marriage is a partnership, one spouse may become accustomed to a certain lifestyle over the course of a marriage. If one spouse cannot maintain that lifestyle after separation and the other has the means to maintain it, a spousal support order may be issued. Entitlement is not automatic and is governed by the length of the marriage and the ability of the recipient spouse to enter the workforce and become self-sufficient.
- Self-sufficiency: our law requires a spouse to take reasonable steps to become economically self-sufficient after a separation. Sometimes this is impossible due to disability, age, and/or experience. Where both spouses are relatively young and able to find work, spousal support orders may be limited in duration or the amounts may gradually decline over a period of time. Spousal support may be reduced by an appropriate amount if a recipient fails to show reasonable efforts to retrain or reenter the workforce. For a good discussion of these principles see the case of B. v. B., [1999] OJ No. 3167.
- Contract: where the parties create a marriage contract, a court may enforce the terms of this contract with regards to spousal support following a separation. However, a court may not enforce a contract that is grossly unfair to one side.
Entitlement issues also play a role in determining whether a spouse will be entitled to a post-separation increase in the payor's income. Again, if the support is compensatory, a recipient spouse will have more of a claim to post-separation increases in the payor's income (see G. v. G. [2013] OJ No. 5102). The connection between recipient's contributions during the marriage and the payor's success at obtaining an increased salary is key (see J. v. J. [2010] BCSC 153). It is usually sufficient for the recipient to show that he or she was a stay-at-home parent to establish this contribution.
II. Amount & Duration
The Spousal Support Advisory Guidelines are intended as "a practical tool to assist spouses, lawyers, mediators and judges in determining the amount and duration of spousal support in typical cases." These guidelines have devised a formula, based upon legal principles contained in the Divorce Act, to calculate spousal support after imputing various factors, such as the existence of children, length of marriage, age of recipient spouse, and the incomes of both spouses. The calculation is complicated and normally requires computer software.
There is an online service found here that can help you determine how much spousal support you may owe or be entitled to. It is important to realize that these calculations are not enforceable by the courts. The spousal support guidelines are only for advice and guidance only. That said, the courts are heavily influenced by these guidelines and apply them regularly in making decisions.
There are two basic formulas - "without child" and "with child." The "without child" formula assumes that the longer a marriage lasts, the more intertwined spouses will become in their economic affairs. The formula pools the total income of both spouses and then equalizes the amount based upon the length of the marriage - the longer the marriage the more equal the division, up to 50%.
The duration of support in the "without child" formula is based upon the age of the recipient spouse and the length of the marriage. The judge will also consider individualized factors, such as the recipient's skills or disabilities, that would effect his or her earning capacity. Longer marriages will result in a recommendation for "indefinite" support. "Indefinite" does not necessarily mean forever - support will still be subject to change based upon the same entitlement issues discussed above, or other changes in the economic circumstances of the payor or recipient spouse.
The with child formula takes into account child support payments which are given priority over spousal support. Raising a child is considered a joint parental enterprise and requires economic sacrifice, so spousal support under this formula can be ordered for a longer duration and for a larger amount, even if the marriage was a short one. A spouse who takes on primary responsibility for caring for a child suffers an economic disadvantage that could last a lifetime. Spousal support can be used to compensate for these economic disadvantages. In addition, spousal support can be used to increase the standard of living in the recipient's household where children reside.
The "with child" formula isolates the individual net disposable income (INDI) of each spouse. The INDI is the amount of money available to each spouse after child support and childcare expenses are removed, and government credits and benefits are added. The goal of spousal support in the "with child" formula is to leave the recipient spouse with about 40 to 46% of the total INDI.
The duration of the "with child" formula is normally indefinite. However, in practice these "indefinite" orders will be reduced or terminated after a time period elapses when the recipient spouse is expected to become self-sufficient. The age of the children and length of the marriage are the two most relevant factors. A stay-at-home parent may be expected to find work or go back to school after the children reach grade school and are in school all day. In cases where the recipient spouse elects to enter into an educational program to upgrade skills, spousal support may be extended for that purpose.
Here are some important early cases in the area of spousal support in Canada. It should be noted that these cases were decided before the creation of the Spousal Support Advisory Guidelines.
Miglin v. Miglin, [2003] 1 S.C.R. 303
Bracklow v. Bracklow, [1999] 1 S.C.R. 420
Moge v. Moge, [1992] 3 S.C.R. 813
Spousal support is a very complicated area of the law, and you should absolutely speak to a lawyer to protect your rights. An experienced family lawyer has the knowledge and tools to assist you get the best possible outcome, which will save you money in the long run. Please email me for more information: [email protected].
There is an online service found here that can help you determine how much spousal support you may owe or be entitled to. It is important to realize that these calculations are not enforceable by the courts. The spousal support guidelines are only for advice and guidance only. That said, the courts are heavily influenced by these guidelines and apply them regularly in making decisions.
There are two basic formulas - "without child" and "with child." The "without child" formula assumes that the longer a marriage lasts, the more intertwined spouses will become in their economic affairs. The formula pools the total income of both spouses and then equalizes the amount based upon the length of the marriage - the longer the marriage the more equal the division, up to 50%.
The duration of support in the "without child" formula is based upon the age of the recipient spouse and the length of the marriage. The judge will also consider individualized factors, such as the recipient's skills or disabilities, that would effect his or her earning capacity. Longer marriages will result in a recommendation for "indefinite" support. "Indefinite" does not necessarily mean forever - support will still be subject to change based upon the same entitlement issues discussed above, or other changes in the economic circumstances of the payor or recipient spouse.
The with child formula takes into account child support payments which are given priority over spousal support. Raising a child is considered a joint parental enterprise and requires economic sacrifice, so spousal support under this formula can be ordered for a longer duration and for a larger amount, even if the marriage was a short one. A spouse who takes on primary responsibility for caring for a child suffers an economic disadvantage that could last a lifetime. Spousal support can be used to compensate for these economic disadvantages. In addition, spousal support can be used to increase the standard of living in the recipient's household where children reside.
The "with child" formula isolates the individual net disposable income (INDI) of each spouse. The INDI is the amount of money available to each spouse after child support and childcare expenses are removed, and government credits and benefits are added. The goal of spousal support in the "with child" formula is to leave the recipient spouse with about 40 to 46% of the total INDI.
The duration of the "with child" formula is normally indefinite. However, in practice these "indefinite" orders will be reduced or terminated after a time period elapses when the recipient spouse is expected to become self-sufficient. The age of the children and length of the marriage are the two most relevant factors. A stay-at-home parent may be expected to find work or go back to school after the children reach grade school and are in school all day. In cases where the recipient spouse elects to enter into an educational program to upgrade skills, spousal support may be extended for that purpose.
Here are some important early cases in the area of spousal support in Canada. It should be noted that these cases were decided before the creation of the Spousal Support Advisory Guidelines.
Miglin v. Miglin, [2003] 1 S.C.R. 303
Bracklow v. Bracklow, [1999] 1 S.C.R. 420
Moge v. Moge, [1992] 3 S.C.R. 813
Spousal support is a very complicated area of the law, and you should absolutely speak to a lawyer to protect your rights. An experienced family lawyer has the knowledge and tools to assist you get the best possible outcome, which will save you money in the long run. Please email me for more information: [email protected].